Looking beyond the Liberals’ ‘Developers First’ approach to planning

The state government has finalised its State Planning Provisions. The SPP will come into force at a municipal level as each local council’s Local Provisions are approved by the Minister for Planning, Peter Gutwein. This may not happen until early 2018 and there is a chance that the government’s proposed ‘single state-wide planning scheme’ will not be in place in any municipality before the election is called.

The TCT will take some interest in responding to the first few local provisions, especially to see how they have allocated zoning and whether they have attempted any special zoning provisions to better protect local urban or natural values. But our main focus has already turned toward undoing the excesses of Minister Gutwein’s approach. Over the last few months the TCT, the Environmental Defenders Office (EDO), The Wilderness Society (TWS) and North-east Bioregional Network (NEBN) have put a great deal of effort into helping the Labor and Greens parties prepare election policies on planning. Special thanks to Jess Feehely of the EDO.

The first question we had to ask ourselves was, ‘Do we oppose the single statewide planning scheme?’  While the TCT and the other groups have never supported the Liberal policy, we are not against greater uniformity where it can be implemented appropriately. The Liberal approach has resulted in a virtual gutting of proper development controls under the guise of seeking uniformity. However, we did not advise the opposition parties to scrap all the changes brought in by the Liberals: in part this was just a pragmatic reading of what the opposition parties would be willing to consider. They would undoubtedly have recoiled from a total roll-back of the Liberal’s changes as it would be very disruptive to industry and councils. There are also some significant advantages to greater uniformity and the Liberals were just continuing what the previous Labor–Green government had done by bringing uniformity through planning directives. 

Scrapping the Liberal Party’s SPPs and the process beyond that

Our major recommendation was that the Liberal Party’s SPPs must be revoked and that a different approach be taken. The current SPPs are fundamentally flawed and cannot be properly addressed through ad hoc amendments.

In summary the major concerns with the Liberal Party’s SPPs are as follows:

  • Too many uses and developments are characterised as permitted and therefore are not subject to public comment, applications cannot be refused by councils and decisions cannot be appealed. This includes all tourism developments in national parks, other reserves and Crown land, more than 50% of the state.
  • Many exemptions are too broad in scope.
  • Many uses which should be subject to an outright prohibition are characterised as discretionary. 
  • Standard setback, density and height provisions are likely to compromise urban character and increase disputes.
  • The Natural Assets Code is inadequate. It does not apply to half of all zones, including to the Agricultural Zone, and has limited application in the Residential Zone. It does not apply to clearing in national parks and reserves. It only applies to threatened vegetation and species, rather than biodiversity more broadly, and does not apply to impacts other than loss of habitat.
  • There is a reliance on external instruments, such as the Reserve Activity Assessments, bushfire hazard plans or Forest Practices Plans, despite the process for granting such instruments lacking rigour or transparency.

We believe that the most efficient process would be to scrap the existing SPPs and replace them with an improved version addressing the various concerns raised throughout the Planning Commission hearings. Before drafting of new SPPs commences, a comprehensive suite of state policies should be developed and regional planning strategies developed that reflect those policies. These would then inform the drafting of new SPPs.

Prior to redrafting new SPPs some changes are required to the Land Use Planning and Approvals Act (LUPA Act), in particular in relation to the powers of the Minister for Planning not to accept the advice of the Tasmanian Planning Commission (TPC) and to make amendments to the State Planning Provisions without the need for further consultation (s.27, LUPA Act).  At the very least, any decision that is contrary to the advice received from the TPC should require parliamentary approval (as is the case with Projects of State Significance).

The State Policies and Projects Act sets out a process for the development of whole-of-government policies on key issues.  Such policies are designed to create consistency across the state and to clearly articulate the government’s view on sustainable development matters. The absence of a comprehensive suite of policies continues to hamper efforts to create effective and integrated planning framework in Tasmania; developing these policies would provide a strong platform for a planning system that delivers for all Tasmanians.

Some priority policy themes include:

  • climate change
  • biodiversity conservation 
  • population and settlement strategy
  • fire management
  • Infrastructure and transport planning
  • tourism
  • waste management
  • Aboriginal heritage.

While all these themes are high priorities and affect each other, a climate policy is probably the first priority. Climate Smart 2020, developed by the previous state government, is a recommended model or guide for a climate policy. 

We consider that state policies are the most appropriate mechanism to deliver state-wide policy direction. However, we are open to a new instrument being created that serves the same purpose. The important thing is that any policies must be developed in consultation with the public and must be required to be implemented through the Planning Scheme.

The Regional Land Use Strategies (RLUS) developed during the period of the last Labor–Green government were designed to provide regional consistency while still acknowledging differences in each region and between council areas.

There were some flaws in the previous process that need to be addressed, including:

  • lack of guidance as to the content and format of the RLUS meant that the three strategies differ significantly 
  • some strategies were outsourced to development organisations that were less receptive to community interests. 

Under the Liberals’ 2015 amendments to the LUPA Act, the SPPs will prevail over any inconsistent provisions in the Local Provisions Schedule (LPS) (s.33(2)) – effectively limiting the flexibility councils will have to introduce different provisions that reflect the character of their municipality.  The TPC may allow LPS to include Particular Purpose Zones, Special Area Plans or site-specific qualifications, but only if satisfied that:

  • the use or development is of significant social, economic or environmental benefit; or
  • the site has particular environmental, economic, social or spatial qualities that require provisions, that are unique to the area of land.

This is a narrow test, and it remains to be seen how open the Commission will be to allowing variations to density and height provisions where a council considers the SPPs standards are not appropriate for a particular area. 

While there is support for standard provisions in relation to issues such as infrastructure, biodiversity and hazard management (particularly where such provisions raise the current standard), local character and heritage protections demand greater flexibility. We recommend that opposition parties consider ways to make it easier for local councils to introduce provisions that will protect these values. 

Resource Management Planning Appeals Tribunal

It is essential that the current rights of community groups and individuals to take appeals to RMPAT against planning decisions be retained and that similar rights be extended to decisions regarding forestry, aquaculture, dam construction and mineral exploration – ideally, by bringing those uses within the planning framework. We recommend a range of measures to encourage and support the public to make appeals, including reducing the current cost of lodging an appeal, providing for protective costs orders and use of tribunal-appointed experts.

Reserve Activity Assessment processto be embedded in legislation

Currently, the process for assessing developments proposed in national parks and reserves, Reserve Activity Assessments (RAA), is not prescribed by legislation. The RAA process is set out in a series of policy documents developed by the Parks and Wildlife Service.

While the RAA process is generally appropriate, there is no guarantee that it will be implemented for all developments, there is no opportunity to challenge a decision made under it and the process can also be changed without any public or parliamentary oversight. 

The process provides for public participation in respect of Level 4 activities, those deemed to have highest impact, but there is nothing to guarantee that all high-impact developments are assessed as Level 4 activities. The decision in respect to the assessment level cannot be challenged.

We recommend legislative amendments that give statutory effect to the RAA process and allow for public participation (including appeal rights) for significant development in parks and reserves.  

Tasmanian Planning Commission to be properly resourced and independent

The TPC needs to be supported to continue as an independent expert body. It must be provided with adequate funding and the Minister’s powers to override TPC recommendations must be curtailed.  

Better Integration

It is important that there is better integration of assessments for all types of industries and that the special processes provided to key extractive industries be removed. We recommend that applications relating to forestry, mining, aquaculture, development in parks and reserves and bushfire hazard burning, be made to the local council, and characterised as discretionary. The application would then be referred to the relevant expert body for assessment. The assessment should include a public comment period, after which the expert body would make recommendations to the local council. The council would then grant or refuse to grant the development permit for the activity, and the applicant or any person who made a representation could appeal to the RMPAT against that decision.

The TCT does not consider the Marine Farming Planning Review Panel a credible assessment body.  Any referral in relation to marine farming developments should be made to the EPA. 

Major projects legislation

The Liberal government intends to introduce legislation to facilitate ‘major projects’. We consider that current laws, in particular in relation to Projects of State Significance, are adequate means of dealing with major projects that have great significance to the entire state. We do not support additional statutory processes to facilitate major projects or additional ministerial call-in powers.

Article by Peter McGlone - TCT Director

The public meeting, held 8 November 2016, at the Hobart Town Hall was filled to capacity with Tasmanian residents concerned about the new planning laws. Photos by Heather Cassidy

The public meeting, held 8 November 2016, at the Hobart Town Hall was filled to capacity with Tasmanian residents concerned about the new planning laws. Photos by Heather Cassidy

 

 

Help Roll Back Gutwein’s new Planning Provisions

TCT Director, Peter McGlone has written a convincing piece on the need to roll back the state government’s new planning provisions (above). As someone who has worked in community engagement for many years, I know how important consultation is in any process.

That is why I am disturbed to see Peter Gutwein’s new planning laws give the Minister the ability to make statewide changes and revisions without community consultation.

This opens the door to future changes and creates a situation where a minister could easily ‘shift the goal posts’ for a particular development. Changes to statewide planning affect all Tasmanians and therefore should be made only after thorough consultation with the community.

The TCT is determined that these changes to the planning system are largely rolled back. Otherwise we have a statewide approach that favours development in national parks whilst removing the level of public oversight in such cases.

The TCT is appealing to our members and friends to support our work in this area. Our plan is to make this an issue at the next state election, but to do this we need your help.

Please consider making a donation to the TCT, your donation will help us continue working on this important issue.

You can make a donation to the TCT below or by calling us during business hours on 03 6234 3552. 

For more information or to get involved with TCT campaigns go here, or contact us by phone - 03 6234 3552.

By Jack Redpath - TCT Community Engagement Manager

Donate to the Tasmanian Conservation Trust

By donating to the TCT you are helping protect Tasmania's beautiful natural environment. We have a proud history of conservation outcomes in Tasmania including establishing the Mt Wellington Reserve, playing an pivotal role stopping the Super Trawler and Tamar Valley Pulp Mill as well as countless local projects.

A donation to the TCT supports work on all of our current campaigns. Some of the most prominent examples are listed here.

Donation Amount:
Quantity:
Donate